Injured in a Transport Accident? When to Sue for Compensation
Our People:
In Victoria, the right to sue for injury sustained in a transport accident, is regulated by the Transport Accident Act (“the Act”) together with common law principles set out in various court decisions. There are also time limits.
What is a transport accident?
The Act defines a transport accident as an incident directly caused by the driving of a car or motor vehicle including a motorcycle, train or tram. It can also include collisions between a bicycle and a stationary car or an opening car door.
Can I Sue for compensation after a transport accident?
In order to successfully sue and recover transport injury compensation (damages) there are threshold issues to be satisfied:
1. The injured person must have sustained a “serious injury” as defined by the Act and if this threshold is not satisfied, the injured person is not entitled to sue and recover damages.
2. The injured person must prove that the transport accident was caused, in whole or in part , by the fault (negligence) of another. The person at fault would normally be insured, generally by the Transport Accident Commission (“TAC”) and it is the insurer who deals with and pays out on the claim.
Check your TAC claim eligibility
What is a Serious Injury?
1. Impairment Rating of 30% or Greater.
If the TAC determines that a person injured as a result of a transport accident, has a permanent impairment to the whole person of 30% or more, then the injury is deemed to be a serious injury and the claimant is able to sue for compensation.
The process to assess and determine impairment generally involves the injured persons lawyer submitting an application to the TAC and arranging joint medical examinations with appropriately qualified specialists, to assess impairment, in accordance with the AMA Guides 4th Edition.
The Guides used to assess impairment take into account prescribed medical criteria but not necessarily the pain and suffering consequences as they apply to the injured individual. Because of the way the Guides work only a small proportion of people obtain an impairment rating of 30% or greater, even for permanent injuries which most fair-minded people would regard as deserving of compensation.
Fortunately, the Act provides an alternative definition of serious injury where impairment is under 30%. This is commonly called the lifestyle test.
2. Lifestyle test.
Irrespective of the impairment rating a serious injury certificate will be granted if -
a) The physical injury results in a long-term impairment or loss of a body function which results in consequences which are more than significant and at least very considerable when judged with other cases in the range of possible impairments or losses of body function.
Generally speaking, the effect of each injury and its consequences on the individual is looked at separately unless different injuries affect the same body function. In other words, it is not permissible to combine different injuries which affect different body functions to collectively satisfy the lifestyle test under paragraph (a).
Sometimes the consequences of an injury may vary depending on the individual, so identical injuries might produce different outcomes. For example, a partial amputation of an index finger may not lead to the grant of a serious injury certificate for an office worker because the consequences may not be “very considerable” whereas a concert Pianist might qualify for the same injury if it meant they were unable to perform professionally.
b) Permanent serious disfigurement;
c) Severe long-term mental or severe long term behavioural disturbance or disorder. The word “severe” has been interpreted by the courts to mean more than “serious“ which effectively creates a higher threshold to be satisfied for a psychiatric injury compared to a physical injury under paragraph (a).
d) Loss of a foetus.
How is a Serious Injury Application Made?
Galbally and O’Bryan, have successfully lodged thousands of serious injury applications and have extensive experience in this area of law.
Applications are lodged under the TAC Common law / Serious Injury Protocols. This involves an exchange of information to enable TAC to consider whether or not to grant a serious injury certificate. If paragraph (a) or (c) of the lifestyle test is relied upon, the lawyer will need to identify the injury, which it is contended, causes either a permanent impairment or loss of a body function and / or a severe long term mental or behavioural disturbance. Medical reports/opinion would be submitted in support. The lawyer would prepare an affidavit from the injured person and in some cases from other lay witnesses (e.g. the spouse) setting out the pain, suffering and loss of enjoyment of life consequences of the injury. If the injury caused a loss of earning capacity then evidence such as tax returns and Vocational / Occupational assessment reports might be submitted to TAC.
Applications for a serious injury certificate under paragraphs (b) and (d) of the lifestyle test are generally more straightforward as are cases where there is a deemed serious injury (impairment 30% or greater).
What Happens if TAC Grants a Serious Injury Certificate?
If a serious injury certificate is granted by the TAC, then a conference is conducted, typically within 3 months, involving the claimant, lawyer, and TAC, to attempt to negotiate an agreed settlement of the common law claim. If there is a settlement TAC generally pay a substantial amount of the claimant’s legal costs and remain liable to pay the claimants reasonable medical expenses for future treatment of accident injuries.
If the matter cannot be settled the claimant can issue legal proceedings to have the court determine the claim at trial. Usually there are further opportunities for the parties before trial to negotiate which sometimes leads to resolution.
What Happens if TAC Does Not Grant a Serious Injury Certificate?
If a serious injury certificate is not granted by the TAC then the claimant has the option of lodging an application with the County Court seeking leave to issue common law proceedings on the basis of serious injury. Typically, the application is heard by the Court within 12 months. Sometimes new evidence may mean TAC has a change of mind and grants a serious injury certificate before any court hearing.
Conclusion
If you have been injured in a transport accident in Victoria, it is important to know where you stand. It makes sense to engage early with No Win No Fee lawyers at Galbally & O’Bryan for advice on issues which inevitably arise with your injury and claim, particularly if you have sustained a serious or long-term injury. You may even be able to sue for common law damages, so seek legal advice.
For further information contact Nicholas O’Bryan on 9200 2533 or by email at nobryan@galballyobryan.com.au.
Find out if you are eligible for TAC compensation